People v. Donald L. Garcia

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
July 28, 2022

2022COA83

No. 19CA1629, People v. Garcia — Criminal Law —
Disqualification of a Judge — Structural Error

A division of the court of appeals holds as a matter of first

impression that it is structural error for a statutorily disqualified

judge to preside over a case.
COLORADO COURT OF APPEALS 2022COA83

Court of Appeals No. 19CA1629
Sagauche County District Court No. 17CR27
Honorable Amanda C. Hopkins, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Donald L. Garcia,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE TOW
Berger, J., concurs
Dailey, J., concurs in part and dissents in part

Announced July 28, 2022

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Donald L. Garcia, appeals the judgment of

conviction entered on a jury verdict finding him guilty of first degree

aggravated motor vehicle theft. This appeal requires us to consider

whether the fact that the judge who presided over the trial was

statutorily disqualified from doing so because of her prior

involvement in the case as counsel for defendant amounts to

structural error. We conclude that it does and therefore reverse the

judgment of conviction. Because we reject Garcia’s challenge to the

sufficiency of the evidence underlying the conviction, we remand for

a new trial before a different judge.

I. Factual Background

¶2 Garcia took his employer’s truck without his permission and

drove it off the road and across a drainage ditch, where it broke

down. The next morning, Garcia had a friend help him tow the

damaged truck back to his employer’s shop. The estimated repair

cost was $11,579.15.

¶3 Garcia was charged with first degree aggravated motor vehicle

theft on July 24, 2017. He was represented by Kate Mattern of the

State Public Defender’s Office. On April 17, 2018, Amanda

Hopkins, then a Deputy State Public Defender, appeared on behalf

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of Garcia at a pretrial readiness conference at which he failed to

appear. As both parties concede, Judge Hopkins was appointed to

the district court bench on July 10, 2018. Judge Hopkins then

presided over the remainder of Garcia’s case, including all pretrial

hearings, the trial, and sentencing.

II. Disqualification of the Judge

A. Standard of Review and Applicable Law

¶4 We review de novo whether Judge Hopkins should have

disqualified herself. See People v. Julien, 47 P.3d 1194, 1197 (Colo.

2002).

¶5 “A judge of a court of record shall be disqualified to hear or try

a case if . . . [sh]e has been of counsel in the case.”

§ 16-6-201(1)(c), C.R.S. 2021. Judge Hopkins appeared as counsel

for Garcia at the pretrial readiness conference and was therefore

required to disqualify herself. See id. Her minimal level of

representation at the hearing does not change our conclusion.

Applying Julien to the defense context, “a judge must disqualify . . .

herself sua sponte . . . if facts exist tying the judge to . . . some role

in the [defense] of the case during the judge’s former employment.”

47 P.3d at 1198 (emphasis added). And if a judge “personally

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participated in the [defense] of [the] case in any way,” she is

disqualified from serving as a judge in the case. See id. at 1200

(emphasis added). Because Judge Hopkins had “some role” in the

defense of the case and personally participated “in any way” in

Garcia’s defense, she erred by not disqualifying herself.1 See

§ 16-6-201(1)(c). Notably, neither party appears to assert that

Judge Hopkins’s appearance and minimal participation in the case

does not amount to her having “been of counsel” in the matter. See

id.

¶6 Further, we conclude that when a statutorily disqualified

judge presides over a case, it is structural error.

1 That being said, we intend no condemnation of Judge Hopkins.
The record reflects that she was not Garcia’s assigned counsel and
had filed no written entry of appearance. She appeared only at one
court date, which was a pretrial readiness conference approximately
one month before the then-scheduled trial date. It is not clear that
Judge Hopkins ever met Garcia, as he failed to appear with her at
the conference. And the minute order did not reflect Judge
Hopkins’s appearance. Finally, although the transcript from the
April hearing clearly shows Judge Hopkins’s appearance, there is
no reason that, at that stage of the proceedings, either party or the
court would have had the transcript prepared from a hearing at
which Garcia failed to appear. Indeed, it appears the transcript was
not prepared until the appellate record was being compiled. Thus,
from this record, it is not surprising that Judge Hopkins would not
have recognized her prior involvement in the case.

3
¶7 In People v. Abu-Nantambu-El, 2019 CO 106, ¶ 39, our

supreme court held that when a potential juror who is statutorily

disqualified from serving pursuant to section 16-10-103(1), C.R.S.

2021, nevertheless serves on the jury, it is structural error. This is

so, the supreme court said, because such potential jurors “are

conclusively presumed by law to be biased.” Abu-Nantambu-El,

¶ 32.

¶8 In this respect, section 16-6-201 is analogous to section

16-10-103, in that it conclusively presumes that a judge who

previously served in the case as counsel is biased. No actual

enmity toward either side is required.2 We see no logical distinction

to be made between a statutorily disqualified juror and a statutorily

disqualified judge. See id. at ¶ 27 (noting that the Sixth

Amendment guarantees the “right to ‘an impartial adjudicator, be it

judge or jury’” (quoting Gray v. Mississippi, 481 U.S. 648, 668

(1987))).

2Nothing in the record suggests Judge Hopkins was actually biased
against Garcia.

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¶9 Because Judge Hopkins was presumed by statute to be

biased, Garcia’s trial was “before a biased judge,” which is

structural error. See Hagos v. People, 2012 CO 63, ¶ 10.

B. Waiver

¶ 10 We also reject the People’s contention that Garcia waived this

claim.

¶ 11 Waiver is “the intentional relinquishment of a known right or

privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of

Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)). Just as

nothing in the record made Judge Hopkins’s prior involvement in

the case obvious to her, nothing made it obvious to Garcia or his

attorneys. Again, the minute order in the court file did not reflect

Judge Hopkins’s appearance at the April hearing, and there is no

reason to believe anyone had a transcript of that hearing prior to

trial. The brief and nonsubstantive hearing at which Judge

Hopkins appeared occurred three months before Judge Hopkins’s

appointment. Defendant did not appear in court on this case for

five months after Judge Hopkins’s sole appearance on his behalf.

The Deputy State Public Defender who handled the case between

the date Judge Hopkins appeared and the trial was John Hoag, not

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Mattern (though Mattern rejoined Hoag as co-counsel at the trial,

which was over a year after Judge Hopkins’s appearance). Thus, it

is not clear from the record that Garcia’s attorneys recalled that

Judge Hopkins had previously appeared in the case.

¶ 12 Finally, we do not share the People’s concern that this could

lead to gamesmanship. The prosecutor had the same opportunity

to raise the issue as did Garcia. See Abu-Nantambu-El, ¶ 38.

¶ 13 In sum, nothing in the record suggests that Mattern, Hoag, or

Garcia was aware of Judge Hopkins’s prior involvement in the case,

either at the time of the judge’s assignment to the case or at the

time of trial. Thus, we discern no waiver.3 Accordingly, we must

reverse the judgment of conviction.

III. Sufficiency of the Evidence

¶ 14 Garcia also challenges the sufficiency of the evidence to

convict him of first degree aggravated motor vehicle theft. Because

retrial on this charge would be barred if this contention is

3 Because we conclude that neither Garcia’s nor his attorneys’
silence waived Judge Hopkins’s disqualification, we need not
address Garcia’s argument that section 13-1-122, C.R.S. 2021,
requires that any consent to Judge Hopkins presiding over the case
must be on the record and come from Garcia personally, rather
than his counsel.

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meritorious, we must address the issue. In doing so, however, we

conclude that the evidence was sufficient.

A. Standard of Review

¶ 15 Both parties assert that we review sufficiency of the evidence

claims de novo. We agree, to a point. Both our supreme court and

divisions of this court have occasionally referred to the review of a

sufficiency of the evidence challenge as a “de novo review.” See,

e.g., People v. Vidauri, 2021 CO 25, ¶ 10; People in Interest of

K.D.W., 2020 COA 110, ¶ 37. However, this increasingly used

shorthand reference can be a bit misleading.

¶ 16 The original, and more complete, recitation of the standard is

that “[w]e review the record de novo to determine whether the

evidence before the jury was sufficient both in quantity and quality

to sustain the convictions.” Dempsey v. People, 117 P.3d 800, 807

(Colo. 2005). We view the evidence as a whole and in the light most

favorable to the prosecution to determine whether the evidence was

“sufficient to support the conclusion by a reasonable mind that the

defendant was guilty beyond a reasonable doubt.” People v. Griego,

2018 CO 5, ¶ 24. In doing so, we give the prosecution “the benefit

of every reasonable inference which might be fairly drawn from the

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evidence.” People v. Perez, 2016 CO 12, ¶ 25 (quoting People v.

Gonzales, 666 P.2d 123, 128 (Colo. 1983)). But, as the supreme

court has recently reiterated, in conducting this review, we “‘may

not serve as a thirteenth juror’ by considering whether we ‘might

have reached a different conclusion than the jury.’ Nor may we

invade the jury’s province by second-guessing any findings that are

supported by the evidence.” Thomas v. People, 2021 CO 84, ¶ 10

(quoting People v. Harrison, 2020 CO 57, ¶ 33).4 Put another way,

what we review de novo is not the ultimate conclusion of guilt by

the fact finder but, rather, whether the prosecution put forward

sufficient evidence to “[meet] its burden of proof with respect to

each element of the crime charged.” Martinez v. People, 2015 CO

16, ¶ 22. And the prosecution fails to meet this burden “[i]f the

evidence is such that reasonable jurors must necessarily have a

reasonable doubt.” Clark v. People, 232 P.3d 1287, 1292 (Colo.

4 These limitations make it clear that our review is not truly de
novo, or “anew.” See Carousel Farms Metro. Dist. v. Woodcrest
Homes, Inc., 2019 CO 51, ¶ 19 (“Without the ability to make factual
findings, it’s unclear how an appellate court could review factual
determinations ‘anew.’” (citing Black’s Law Dictionary (10th ed.
2014))). Indeed, were we to truly review the evidence de novo, we
would sit as a thirteenth juror and would be permitted to simply
weigh the evidence differently.

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2010) (citing People v. Bennett, 183 Colo. 125, 132, 515 P.2d 466,

470 (1973)).

B. Applicable Law

A person commits aggravated motor vehicle
theft in the first degree if he or she knowingly
obtains or exercises control over the motor
vehicle of another without authorization or by
threat or deception and . . . [c]auses five
hundred dollars or more property damage,
including but not limited to property damage
to the motor vehicle involved, in the course of
obtaining control over or in the exercise of
control of the motor vehicle.

§ 18-4-409(2)(e), C.R.S. 2021. “A person acts ‘knowingly’ . . . with

respect to a result of his conduct, when he is aware that his

conduct is practically certain to cause the result.” § 18-1-501(6),

C.R.S. 2021.

C. Analysis

¶ 17 We disagree with Garcia that the evidence was insufficient to

show that he knowingly caused damage to the truck because there

was no evidence addressing the manner in which he drove the

vehicle.

¶ 18 Initially, we note that it is unclear whether the People were

required to prove that Garcia “knowingly” caused damage to the

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truck. “When a statute defining an offense prescribes as an

element thereof a specified culpable mental state, that mental state

is deemed to apply to every element of the offense unless an intent

to limit its application clearly appears.” § 18-1-503(4), C.R.S. 2021.

However, proof that Garcia caused damage to the truck is a

sentence enhancer, not an element. See People v. Poindexter, 2013

COA 93, ¶ 82 n.2. The mental state does not necessarily apply to

sentence enhancers. See Garcia v. People, 2019 CO 64, ¶¶ 34-38.

Because the People do not argue this point, however, we will

assume without deciding that the People were required to prove

that Garcia knowingly caused damage to the truck.

¶ 19 The jury heard the following testimony:

 The truck had a bent axle and tire, missing side rails,

broken levers on the steering column, and bent toolboxes

hanging beneath the truck bed.

 To retrieve the truck Garcia and his friend “turned left off

into the sagebrush and down a couple of draws and then

turned up in a specific draw.”

 “You could see where [Garcia] plowed through some little

bumps.”

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 Garcia admitted that he “wrecked” the truck and that he

“screwed up.”

¶ 20 We conclude that the jury could reasonably infer from this

evidence that this was not an accident but, instead, that Garcia

knowingly drove the truck over rough terrain for a considerable

distance and knew that his conduct was practically certain to

damage the truck. Accordingly, the prosecution presented

sufficient evidence of first degree aggravated motor vehicle theft.

IV. Disposition

¶ 21 We reverse the judgment of conviction and remand for a new

trial on the original charge before a different judge.

JUDGE BERGER concurs.

JUDGE DAILEY concurs in part and dissents in part.

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JUDGE DAILEY, concurring in part and dissenting in part.

¶ 22 I agree with the majority’s sufficiency of evidence analysis.

But, for the following reasons, I would not reverse on structural

error grounds.

¶ 23 As the majority points out, Garcia did not object to his former

attorney presiding over the case upon that attorney’s appointment

to the bench. In my view, Garcia waived any claim that the judge

should have disqualified herself.

¶ 24 Initially, I assume, without deciding, that even though no

actual bias on Judge Hopkins’s part has been shown, it is

nevertheless structural error for a statutorily disqualified (i.e.,

impliedly biased) judge to preside over a trial. Cf. People v. Abu-

Nantambu-El, 2019 CO 106, ¶ 39 (holding that it was structural

error for a statutorily disqualified juror to sit on a jury because,

even though no actual bias was shown, the bias was implied as a

matter of law).

¶ 25 But “even fundamental rights can be waived, regardless of

whether the deprivation thereof would otherwise constitute

structural error.” Stackhouse v. People, 2015 CO 48, ¶ 8. Waiver is

“the intentional relinquishment of a known right or privilege.”

12
People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of Health v.

Donahue, 690 P.2d 243, 247 (Colo. 1984)). We review de novo

whether there was a waiver. See Bondsteel v. People, 2019 CO 26,

¶ 21.

¶ 26 A defendant who seeks to disqualify a judge must file a motion

within fourteen days of the case being assigned to that judge,

unless good cause is shown. Crim. P. 21(b)(1); see People v. Dist.

Ct., 192 Colo. 503, 507, 560 P.2d 828, 831 (1977) (holding that

Crim. P. 21(b) has uniformly been applied in disqualification cases

and that the time requirements in Crim. P. 21(b) apply whether the

movant expressly invokes that rule or “purports to proceed only

under section 16-6-201”). Unless the basis for disqualification is

actual bias, failure to timely request a substitution of judge waives

any claim that the judge should have recused herself. People v.

Dobler, 2015 COA 25, ¶ 7.

¶ 27 Although the statute deems Judge Hopkins to be impliedly

biased, it is not a statutory declaration that she is actually biased.

True, our supreme court in Abu-Nantambu-El said that a juror who

is deemed by statute to be biased “is legally indistinguishable from

an actually biased juror.” Abu-Nantambu-El, ¶ 2. However, that

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statement was in the context of whether service by such a juror

would be treated as structural error. Id. The supreme court

explicitly acknowledged that failure to raise the statutory

disqualification would result in the issue not being preserved for

appeal. Id. at ¶ 37. Thus, unlike actual bias, disqualification based

on implied bias can be waived.

¶ 28 In my view, it defies logic to suggest that the deputy state

public defenders representing Garcia at trial would not have known

that Judge Hopkins had appeared at the April hearing. Indeed,

Mattern was the attorney of record both at that time of Judge

Hopkins’s single appearance in the matter and at trial. To suggest

that she did not know who appeared on her behalf assumes a level

of disregard for her cases that I am simply not willing to believe a

competent defense attorney would display. Not raising the issue

once Judge Hopkins had been appointed to the bench and assigned

the case qualifies, in my view, as an intentional relinquishment of a

known right.


It does not take a significant leap to imagine the possible strategic
value of not seeking the disqualification of a judge whom, in light of
her prior position, defense counsel may consider preferable to other
judges in the district.

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¶ 29 Further, I disagree with Garcia that Judge Hopkins lacked the

authority to act under section 13-1-122, C.R.S. 2021, which

provides that “[a] judge shall not act as such in any of the following

cases: . . . when [s]he has been attorney or counsel for either party

in the action or proceeding, unless by consent of all parties to the

action.” In Kerr v. Burns, 42 Colo. 285, 290, 93 P. 1120, 1122

(1908), the supreme court noted that the argument that the “decree

was void because the presiding judge was counsel for one of the

parties at the inception of that proceeding” did “not go to

jurisdiction over the subject-matter.” Garcia’s argument is

therefore merely another disqualification argument. And by not

objecting, the parties consented to Judge Hopkins presiding over

the case. See id. at 291, 93 P. at 1122 (concluding that the parties’

failure to object during the proceedings was “acquiescence that

must be held equivalent to an affirmative consent”).

¶ 30 Because Garcia waived any challenge to Judge Hopkins’s

failure to disqualify herself based on an appearance of impropriety

or implied bias, I would reject this as a ground for reversal.

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